AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 24 December 2019

Merhi v R

[2019] NSWCCA 322

Fraud & dishonestyPublic order & justice offences

Citation: Merhi v R [2019] NSWCCA 322
Court: NSW Court of Criminal Appeal
Date: 24 December 2019
Judge(s): Macfarlan JA, Harrison J, Cavanagh J (unanimous)

Background

The appellant was a former Australian Border Force (ABF) Customs Officer who, by 2017, had left that role and was employed as a multicultural liaison officer with NSW Police. Her former colleague, a serving ABF Senior Border Force Officer, remained employed at the ABF. Together they assisted a tobacco importation syndicate by covertly passing sensitive ABF intelligence to facilitate the undetected importation of a large consignment of undeclared cigarettes, causing an estimated revenue loss of over $6 million in unpaid duties and taxes.

The appellant's specific role was to act as a conduit between the syndicate principals and her co-offender, directing him to conduct unauthorised searches on ABF systems and monitoring whether the shipping container would be flagged for inspection. After the consignment was released, the appellant received payment from the syndicate and personally delivered $100,000 in cash to the co-offender. She was charged with three federal offences: bribery of a public official, aiding and abetting tobacco importation with intent to defraud the revenue, and dealing in proceeds of crime exceeding $100,000.

In April 2019, the District Court sentenced the appellant to an aggregate term of five years and six months' imprisonment with a non-parole period of three years and three months. She sought leave to appeal against that sentence.

  • Whether the sentencing judge erred by treating the appellant's former employment as a Customs Officer as a matter "seriously aggravating" the offending, on the basis that she had abused her office, position of authority, or a position of trust
  • Whether the sentencing judge erred by treating that same former employment as a factor limiting the weight to be given to the appellant's prior good character
  • Whether the aggregate sentence was manifestly excessive

Decision

Ground 1: Abuse of trust and position

The Court of Criminal Appeal found that the sentencing judge had erred. The appellant was not employed as a Customs Officer at the time of the offending; she had left the ABF two years earlier. The court accepted that the appellant's former employment was directly relevant to her offending, because she used knowledge and contacts acquired during that career. However, it was an error to characterise this as an "abuse of office" or "abuse of a position of authority" in the same way as would apply to a currently serving officer who misuses their existing powers and duties. The court distinguished the present circumstances from those in cases such as R v Standen, where the offender committed offences directly connected to and facilitated by their current employment.

Ground 2: Good character and prior employment

The court found that the sentencing judge also erred in using the appellant's former law enforcement employment as a reason to discount or diminish the mitigating weight of her prior good character. Prior good character remains a relevant mitigating factor even where an offender's background in law enforcement might be said to have made their offending more culpable in other respects. The two considerations are analytically distinct and should not be conflated.

Ground 3: Manifest excess and resentencing

Having identified error on Grounds 1 and 2, the court proceeded to resentence the appellant. The court acknowledged that general deterrence remained significant, particularly given the appellant's use of her knowledge of ABF systems and law enforcement contacts to facilitate serious offending. A custodial sentence of substantial length remained appropriate. After applying a 25 per cent discount for the plea of guilty, accounting for the appellant's personal circumstances (including that imprisonment would be more onerous given her law enforcement background), recognising her prior good character as a mitigating factor, and having regard to comparable sentencing cases, the court imposed a reduced aggregate sentence.

Orders Made

  • Leave to appeal granted; appeal allowed
  • Original sentence set aside and the appellant resentenced
  • For the bribery and tobacco importation offences: an indicative sentence of four years and six months' imprisonment
  • For the proceeds of crime offence: an indicative sentence of three years and six months' imprisonment
  • Aggregate sentence of four years and six months' imprisonment
  • Non-parole period of two years and six months
  • Sentence backdated to 12 March 2019, expiring 11 September 2023
  • Non-parole period expiring 11 September 2021; eligible for parole from 12 September 2021

Key Takeaways

  • An offender's former employment in law enforcement can be relevant to sentencing, particularly where that former employment provided the knowledge and contacts used to commit the offence, but this is distinct from treating a former employee as having abused a currently held office or position of authority.
  • Characterising an ex-employee's conduct as an "abuse of office" or "abuse of position" requires a direct link between an existing role and the offending; it is not sufficient that the offender once held a relevant position.
  • Prior good character retains independent mitigating weight at sentencing and should not be diminished simply because the offender's background might separately aggravate the seriousness of the offending. The two considerations must be treated distinctly.
  • General deterrence carries significant weight in cases involving the corruption of, or assistance to, law enforcement insiders, even where the offender is no longer serving in that capacity.
  • In resentencing, the Court of Criminal Appeal considered the comparative range of sentences imposed in analogous cases under the relevant Customs Act and Criminal Code provisions, noting that the original sentence was higher than the majority of comparable cases.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 16A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Code Act 1995 (Cth), ss 11.2, 141.1, 400.4
- Customs Act 1901 (Cth), s 233BABAD

Cases
- Conte v R [2018] NSWCCA 209
- Hughes v R [2018] NSWCCA 2
- JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Kentwell v The Queen (2014) 252 CLR 601
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- R v Kennedy [2000] NSWCCA 527
- R v Lamella [2014] NSWCCA 122
- R v Obeid (No 12) [2016] NSWSC 1815
- R v Standen [2011] NSWSC 1422
- Suleman v R [2009] NSWCCA 70
- Turnbull v R [2019] NSWCCA 97
- Windle v R [2011] NSWCCA 277
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64